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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


'**»  SOUS  OMOHAV5 
Aq  pcjnpojnuoyy 

MIONIQ  JLFIHdVWd 

±NnOWVlAV9 


THE 

LEGAL  REMEDY 

FOR 

PLUTOCRACY. 


Address  by  Edgar  Howard  Farrar,  A.M.,  of  New  Orleans,  La., 

Before  the  Society  of  Alumni  of  the  University  of 

Virginia,  on  June  17th,  1902. 


Reprinted  from  the  University  Bulletin. 


F 


Q 


THE  LEGAL  REMEDY  FOR  PLUTOCRACY, 


Address  by  Edgar  Howard  Farrar,  A.  M.,  of  New- 
Orleans,  La.,  Before  the  Society  of  Alumni 
of  the  University  of  Virginia,  on 
June  17th,  1902. 


Reprinted  from  the  "University  Bulletin." 


Mr.  Chairman,  Fellow  Alumni  of  the  University  of  Virginia, 
Ladies  and  Gentlemen: 

The  generation  of  men  to  which  I  belong,  who,  full  of 
hope  and  strength,  left  the  precincts  of  this  university 
thirty-one  years  ago,  to  enter  upon  the  active  duties  of 
life,  found  themselves  face  to  face  with  social  and  political 
questions  that  touched  the  foundations  of  the  republic. 

Those  of  us  of  Southern  birth  and  bringing  up  (and  then, 
as  now,  those  who  were  not  such  were  a  negligible  quantity) 
had  seen  in  the  impressionable  period  of  youth  the  tide  of 
civil  war  pour  over  our  land,  leaving  behind  a  track  of  pil- 
laged cities,  devastated  farms  and  denuded  homesteads. 

From  out  of  this  wreckage,  with  loving  and  self-denying 
hands,  were  garnered  the  almost  tragic  dollars  that  placed 
and  kept  us  in  the  bosom  of  this  our  venerable  and  cher- 
ished mother.  At  the  thought  of  the  self-sacrificing  sifts 
of  those  tender  hands,  now  mostly  folded  forever,  there 
wells  up  to  each  of  our  lips  from  each  of  our  hearts  a 
choking  stream  of  prayers  and  blessings  for  a  race  of  men 
and  women,  our  fathers  and  mothers,  scions  of  the  Old 
South,  who,   though  brought  up  in   the  arts  of  peace,  yet 


became  in  war  antagonists  that  could  be  crushed  by  num- 
bers, but  not  overcome,  who,  though  nurtured  in  ease  and 
affluence,  yet  accepted  poverty  with  grace  and  contentment, 
who  taught  themselves  and  their  children  to  rank  princi- 
ple above  lucre,  and  whose  ideal  in  public  and  in  private 
station,  in  life,  and  in  death,  was  honor.  Peace  to  their 
ashes  and  unfading  laurels  to  their  memories  forever. 

The  problems  that  came  to  them  in  their  declining  years, 
and  to  you  in  the  vigor  of  young  manhood,  were  to  build 
up  a  wasted  country,  to  revivify  a  perished  commerce,  to 
reorganize  upon  a  new*  basis  a  destroyed  society,  to  adjust 
in  its  proper  place  a  once  servile  and  inferior  race,  who,  by 
the  chicanery  of  politicians  and  the  hypocritical  snivel  of 
sham  philanthropists,  had  been  placed  with  their  heels 
upon  your  necks,  to  recover  those  rights  of  political  and 
civil  liberty  taken  from  vou  bv  the  angry  passions  of  civic 
strife,  to  heal  the  gaping  wounds  caused  by  that  strife,  and 
to  resume  your  hereditary  place  in  the  federal  galaxy  as 
the  descendants  of  the  men  who  had  proclaimed  the  Decla- 
ration of  Independence,  and  had  with  their  blood  and  their 
fortunes  established  its  principles  as  a  common  heritage  for 
all  their  posterity. 

Thanks  be  to  God,  after  a  generation  of  struggle  you 
have  achieved  what  you  set  out  to  accomplish.  A  few 
embers  still  survive  from  the  conflagration  of  forty  years 
ago,  but  without  sufficient  life  to  kindle  a  flame,  and  with 
constantly  ebbing  vitality. 

The  American  Republic  of  Republics — ''the  indissoluble 
union  of  indestructible  States" — has  reached  a  point  of 
unparalleled  power,  and  has  entered  upon  a  career  of 
unparalleled  prosperity. 

There  is  no  one  to  oppress  us  or  to  make  us  afraid.  Our 
autonomy  and  political  liberties  are  beyond  attack  from 
outside.  No  nation,  and  no  combination  of  nations,  will 
assail   the    United  States,  unless  the   insolence  that  some- 


o 
O 


times  attends  power  shall  induce  us  to  depart  from  the  safe 
lines  laid  down  by  the  fathers  of  the  republic,  and  to  use 
that  power  to  oppress,  instead  of  using  it  to  win  the  world  by 
the  arts  of  peace,  and  by  the  example  of  a  free  society  teach- 
ing mankind  that  the  people  are  fit  for  self-government, 
that  true  liberty  exists  only  in  the  realm  of  wise  law,  that 
the  real  object  of  government  is  to  promote  the  growth  and 
development  of  the  individual  citizen,  and  that  democracy 
ought  to  be  the  hope  and  the  aim  of  all  the  nations  of  the 
earth . 

We  have,  indeed,  none  to  fear  except  God  and  ourselves. 
In  the  bosom  of  our  society  alone  can  arise  and  develop 
the  evils  that  will  work  the  downfall  and  ruin  of  the  ideal 
of  the  republic.  Causes  that  work  to  this  end  are  deep 
seated  and  slow  of  operation.  In  their  origins  they  are 
often  imperceptible  to  the  masses.  They  usually  have  their 
foundations  in  the  rights  of  property,  and  in  the  inequali- 
ties begotten  between  individuals  resulting  from  property 
rights,  established  and  permitted  by  law  in  organized 
society  which  cannot  exist  without  defining  and  protecting 
by  law  every  species  of  property.  Large  inequalities  neces- 
sarily arise  between  men  based  on  natural  gifts,  and  on  the 
superior  qualities  of  their  ancestors. 

To  repress  all  inequalities,  to  force  all  men  to  a  dead 
level,  to  restrain  the  activity  and  enterprise  of  the  in- 
dividual, and  to  take  from  him  for  the  benefit  of  the  in- 
competent mass  what  his  skill  and  energy  have  acquired 
is  the  sodden  dream  of  socialism,  which  thus  seeks  to 
reverse  nature's  universal  law  of  the  survival  of  the  fittest 
by  which  she  has  climbed  the  scale  of  existence  from  the 
diatom  to  man,  and  has  lifted  man  from  the  savage  who 
cannot  count  beyond  three  to  the  mathematician  who 
weighs  the  planets  and  measures  the  visible  universe. 

To  foster  and  accentuate  inequalities  artificially  and  not 
naturallv  established,  to   give   honors   and    privileges  and 


birthrights  to  particular  classes,  to  perpetuate  certain  fam- 
ilies as  though  they  were  made  of  a  superior  quality  of 
flesh,  and  to  that  end  to  hold  property  out  of  commerce 
in  the  coils  of  entails,  family  compacts,  uses  and  trusts, 
majorats,  mayorazgos,  marquisates,  lordships,  earldoms, 
dukedoms  and  all  the  accursed  devices  of  feudalism  to 
exalt  the  few  and  oppress  the  many,  is  the  object  and  aim 
of  every  aristocratic  form  of  government. 

To  affirm  and  guard  the  equal  rights  of  all  its  citizens, 
to  eradicate  the  last  vestige  of  granted  privilege,  to  keep 
the  course  free  and  fair  that  all  contestants  for  honor  or 
wealth  may  win  on  their  merits,  and  particularly  to  stamp 
all  policy  and  all  legislation  with  the  robust  seal  of  the 
law  of  survival  by  which  the  strong  and  the  fit  will  endure 
and  the  weak  and  the  unfit  will  perish,  is  the  true  ideal  of 
a  republic. 

With  prophetic  vision,  and  with  a  profound  knowledge 
of  the  principle  that  adverse  currents  of  polity  cannot  run 
concurrently  in  any  society,  but  that  one  must  prevail  over 
the  other,  Mr.  Lincoln  said  that  this  country  could  not 
exist  half  slave  and  half  free.  So  also  must  it  be  said  that 
it  cannot  exist  dominated  by  both  aristocratic  and  demo- 
cratic doctrines. 

Juxtaposition  of  such  doctrines  must  beget  an  irrepres- 
sible conflict,  and  as  the  one  kind  or  the  other  prevails,  so 
will  our  society  lean  to  democracy  or  to  aristocracy. 

But  there  is  a  congener  of  aristocracy,  which  springs  from 
the  same  root,  which  is  made  fertile  by  the  same  conditions, 
which  bears  many  of  the  same  characteristics  and  which 
is  a  growth  much  more  hostile  and  harmful  to  liberty. 
We  call  that  foul  weed  plutocracy.  It  is  the  noxious  form 
which  aristocracy  takes  among  a  free,  rich  and  prosperous 
people.  It  arrays  itself  at  first  with  the  wreath  and  toga 
of  simplicity,  but  its  progress  to  the  crown  and  purple  is 


eager  and  rapid.      Without  the  legal  privileges,  it  apes  the 
airs  and  manners  and  arrogates  to  itself  the  rights  of  the 
chartered  superiors  of  mankind.     It  sets  up  liveries,  and 
degrades  free    citizens    by    compelling    them   to   wear  this 
snobbish  badge  of  servitude  and   inferiority.     It   manufac- 
tures for    itself  coats  of    arras  and  crests    and    pedigrees* 
although   its  progenitors  were  peasants  and   artisans   from 
the  first  migration  of  the  Aryan   races  down  to  its  fathers. 
It  baits  its  daughters  with   fat  dowers  to  catch  scrofulous 
lordlings  or  impecunious    counts,  desirous    of    redeeming 
their  ancestral  estates  encumbered  by  the  crimes  and  dissi- 
pations of  their  equally  unworthy  ancestors.     Sometimes 
it  betakes  itself  out  of  this  plebeian  land,  upon  the  ground 
that  no  gentleman   can  live  here,  and  seeks  consort  with 
kings   and  princes,  and  to  win  the   guerdon  of  lordship  by 
lavishing  American  gold  upon  the  congenital  paupers  that 
crowd  the  almshouses  of  the  realm.       Sometimes  it  tickles 
its   own   vanity  by  abundant  largesse   to  eleemosynary   in- 
stitutions bearing  its  own  name.     But  the  sphere  where  its 
power  is  to  be  dreaded,  and  not  turned    into  ridicule,  is 
that  it  tends  to  monopolize  the  nation's  property,  industries 
and  sources  of  wealth,  and  to  corrupt  both  the  suffragans 
and  the  lawmakers  of  the  land. 

The  problem  that  confronts  us  to-day,  and  that  will  con- 
front our  descendants  for  generations,  is  howr  to  check  this 
plutocratic  growth  without  trenching  on  the  principles  of 
liberty  and  democracy. 

It  is  not  to  be  thought  of  for  a  moment  that  any  restric- 
tions be  placed  on  the  right  and  power  of  the  individual  to 
gain  all  the  wealth  he  can  by  the  lawful  and  honorable 
employment  of  his  faculties.  Spoliation  of  the  rich  by 
organized  society  is  as  bad  as  grinding  the  faces  of  the 
poor.  Every  one  is  the  absolute  owner  of  his  own  mental 
and  physical  powers,  and  has  the  unqualified  right  to 
exploit  them  under  the  moral  law  during  his  natural  life 


6 

to  their  full  extent,  with  due  respect  to  the  same  right  in 
every  other  individual.  The  despot  and  the  socialist,  who 
professes  the  worst  form  of  despotism,  alone  deny  this 
proposition. 

We  cannot,  therefore,  consistently  with  the  principles  of 
liberty,  legislate  so  as  to  prohibit  the  accumulation  of  wealth 
by  honest  individual  effort,  but  we  can  legislate  consistently 
with  those  principles  in  two  ways  :  first,  so  as  to  destroy 
the  privileges  out  of  which  most  of  the  great  existing  for- 
tunes have  grown  ;  second,  so  as  to  prevent  wealth  from 
being  hereditarily  piled  up  in  a  few  hands,  so  as  to  disperse 
it  in  accordance  with  the  operation  of  nature's  laws,  and  so 
as  to  keep  it  in  commerce  and  out  of  the  dead  hand  of  the 
family  compact  and  of  the  trust  estate. 

The  main  sources  of  privilege  are  protective  tariffs, 
bounties  from  the  public  treasury,  and  the  grants  of  fran- 
chises to  exploit  public  utilities,  which  franchises  are  essen- 
tially common  property,  inalienable  in  their  very  nature, 
and,  if  exploitable  by  private  enterprise  at  all,  then  only 
under  limitations  whereby  they  will  revert  at  short  inter- 
vals, and  whereby  the  public  will  obtain  their  full  value. 

It  is  not  my  purpose  to  discuss  to-day  this  branch  of  the 
problem  propounded,  nor  to  justify  by  argument  the  state- 
ments just  made. 

In  my  judgment  the  second  branch  is  of  greater  import- 
ance than  the  first,  because  more  far  reaching,  touching 
more  closely  the  life  of  the  people,  and  yet  less  generally 
known  and  understood. 

Ought  there  to  exist  in  any  democratic  society  any  rule 
of  law  by  which  the  posthumous  avarice,  or  vanity  or  family 
pride  of  a  dead  man  can  hinder  or  impede  the  welfare  and 
progress  of  mankind? 

The  answer  of  right  reason  to  this  question  is  No  ! 

The  answer  of  the  aristocrat  and  the  plutocrat  is  that  he 
is  mankind  (or  the  only  part  of  it  to  be  taken  into  consid- 


eration),  and  he  ought  to  have  the  right  to  perpetuate  his 
fortune,  and  to  fortify  and  protect  his  descendants.  Such 
a  one,  having  in  life  bestridden  the  narrow  world  like  a 
colossus,  desires  when  he  falls  from  the  pedestal,  to  pro- 
vide for  the  erection  of  his  successor,  and  his  successor's 
successor  to  the  end  of  time.  He  desires  further  the  right, 
in  case  his  successor  should  be  of  clay,  and  not  of  bronze, 
to  stay  and  prop  him  with  every  form  of  vicious  scaffolding 
that  the  ingenuity  of  lawyers  can  devise. 

It  is  my  purpose  to  demonstrate  that  essential  parts  of 
the  system  of  laws  generally  prevailing  in  the  United 
States  not  only  permit,  but  foster  the  evil  in  question  ; 
that  such  system  takes  its  origin  in  feudalism,  and  that  in 
such  respect  it  is  hostile  to  the  principles  of  democratic 
government. 

In  obedience  to  the  general  rule  of  development,  that 
colonies  adopt  the  law  of  the  mother  country,  the  common 
law  of  England  was  implanted  on  this  continent,  and  it 
prevails  to-day,  modified  sometimes  by  statute,  in  every 
State  of  the  American  Union  but  one,  and  in  all  the  British 
Provinces,  except  Quebec. 

Like  every  system  of  law,  it  bears  the  marks  of  the  polit- 
ical and  social  struggles  through  which  the  people,  among 
whom  it  grew  up  and  was  moulded,  have  passed  since  the 
dawn  of  history. 

While  on  one  hand  it  exhales  the  inspiring  breath  of 
liberty  in  the  right  of  trial  by  jury,  in  the  habeas  corpus,  in 
the  right  of  petition,  in  the  right  of  local  self-government, 
in  the  citizen's  freedom  from  taxation  without  his  consent, 
in  his  right  of  representation  in  the  law-making  body,  yet, 
on  the  other  hand,  it  contains  principles  engrafted  on  it  in 
the  interest  of  that  aristocracy,  the  creature  of  feudalism, 
which  is  now  and  has  been  for  more  than  eight  hundred 
years  one  of  the  dominant  factors  in  the  life  of  the  English 
nation. 


8 

Primogeniture,  the  exclusion  of  female  by  male  heirs, 
the  entail  of  lands,  the  settlement  of  estates  for  lives  in 
being  and  twenty-one  years  thereafter,  the  constitution  of 
trust  for  accumulation  and  other  purposes,  are  samples  of 
these  principles. 

To  these  must  be  added  (also  the  work  of  feudalism,  as 
pointed  out  by  Maine),  the  destruction  of  the  limitations 
imposed  by  the  ancient  common  law  on  the  right  of  testa- 
mentary disposition,  which,  if  not  the  same  in  nature,  were 
the  same  in  effect,  as  the  forced  heirship  of  the  civil  law  ; 
and  the  consequent  establishment  of  that  frightful  doctrine 
now  prevailing  in  England  and  generally  in  the  United 
States,  that  a  father  of  a  family,  for  any  reason  that  ap- 
pears to  him  good,  may  cut  off  the  inheritance  of  his  chil- 
dren entirely,  or  may  prefer  any  one  of  them  and  destitute 
the  others  for  the  favorite's  benefit. 

All  of  these  malign  principles  were  imported  into  the 
United  States  as  part  of  the  common  law.  Many  of  them 
remain  in  full  force  to  this  day,  and,  in  my  judgment,  afford 
the  firm  foundation  and  vantage  ground  upon  which  plu- 
tocracy is  erecting  its  anti-democratic  superstructure. 

It  was  early  recognized  that  the  right  of  primogeniture, 
or  the  right  of  the  first  born  son  to  exclude  all  females  and 
all  subsequently  born  males  from  the  inheritance,  was  in- 
consistent with  republican  government. 

Mr.  Jefferson  accounted  his  authorship  of  the  statute  of 
Virginia  abolishing  this  right  as  one  of  the  grounds  upon 
which  his  services  to  society  rested. 

It  is  no  longer  recognized  in  any  of  the  American  States, 
so  far  as  I  know  ;  but,  as  I  shall  show  directl\r,  the  unqual- 
ified power  of  disposition  by  testament  produces  the  same 
effect,  and  from  that  effect  grow  the  same  evils  that  spring 
from  the  legally  established  right. 

It  has  likewise  been  generally  recognized,  except  perhaps 


9 

in  Delaware,  that  entails  should  not  exist  in  a  free 
government. 

The  great  apostle  of  liberty,  whose  name  I  have  just 
called,  made  the  first  move  on  this  continent  to  prohibit 
entails,  and  was  the  author  of  the  statute  of  Virginia  abol- 
ishing them. 

In  his  autobiography,  he  gives  his  reasons  for  this 
measure,  as  follows  : 

"In  the  earlier  times  of  the  colony,  when  lands  were  to 
be  obtained  for  little  or  nothing,  some  provident  individ- 
uals procured  large  grants  ;  and  desirous  of  founding  great 
families  for  themselves,  settled  them  on  their  descendants 
in  fee  tail.  The  transmission  of  this  property  from  gener- 
ation to  generation  in  the  same  name,  raised  up  a  distinct 
set  of  families,  who,  being  privileged  by  law  in  the  perpet- 
uation of  their  wealth,  were  thus  formed  into  a  Patrician 
order,  distinguished  by  the  splendor  and  luxury  of  their 
establishments 

"To  annul  this  privilege,  and  instead  of  an  aristocracy 
of  wealth,  of  more  harm  and  danger  than  benefit  to  society, 
to  make  an  opening  for  the  aristocracy  of  virtue  and  talent 
which  nature  has  wisely  provided  for  the  direction  of 
the  interests  of  society,  and  scattered  with  equal  hand 
through  all  its  conditions,  was  deemed  essential  to  a  well- 
ordered  republic." 

His  authorship  of  the  statute  named  he  also  considered 
one  of  the  benefits  he  had  conferred  on  his  fellow-citizens. 

That  entails  were  contrary  to  the  true  spirit  of  Saxon 
freedom  appears  in  the  sturdy  struggle  made  to  everthrow 
them.  Strict  entails  were  imposed  by  the  barons  in  the 
reign  of  Edward  I  by  the  statute  "De  Donis."  For  two 
hundred  years  thereafter  in  every  Parliament  attempts  were 
made  to  repeal  that  statute,  but  the  House  of  Lords  would 
not  permit  the  repeal.  Finally  the  courts  invented  the 
fictitious  proceeding  called  a  "common  recovery,"  and  sub- 


10 

sequently,  by  a  doubtful  interpretation  of  a  statute,  another 
fictitious  proceeding  called  the  "levying  of  a  fine,"  by  which 
an  entail  could  be  barred.  They  can  now  be  barred  under 
the  statute  of  1833  by  a  deed  enrolled  in  the  Court  of 
Chancery. 

But  while  entails  can  be  barred  in  England  and  are  pro- 
hibited in  the  United  States,  nearly  all  the  evil  results  that 
flow  from  the  legal  declaration  of  such  a  system,  can  be, 
have  been,  and  are  daily  set  up  in  both  countries  by  the 
operation  of  the  family  compact  and  the  trust  estate. 

We  have  among  us  many  notorious  instances  of  the  fam- 
ily compact,  the  most  conspicuous  of  which  occur  in  two 
well  known  New  York  families,  resulting  in  the  piling  up 
of  fortunes,  the  magnitude  of  which  make  insignificant 
the  "wealth  of  Ormus  and  of  Inde,"  that  fired  even  the 
glorious  imagination  of  John  Milton. 

These  results  have  been  accomplished  by  the  handing 
down  from  father  to  son  for  three  or  four  generations  of  the 
fixed  tradition  and  compact  that  each  testator  shall  leave 
the  whole,  or  the  bulk,  of  the  family  fortune  to  some  one 
member  thereof,  who  shall  in  turn  do  likewise,  and  whose 
descendants  for  all  time  shall  keep  up  the  tradition.  If 
these  fortunes  have  become  so  great  in  one  century,  wThat 
will  they  become  in  another?  Property  in  the  great  com- 
mercial heart  of  the  Union  that  passes  into  the  hands  of 
the  reigning  Astor  or  Vanderbilt  passes  absolutely  out  of 
commerce,  and  the  plain  citizen  who  lives  upon  it  and 
pays  rent  for  it,  has  no  more  hope  that  either  he  or  his 
descendants  can  ever  get  an  opportunity  to  own  it  by  law- 
ful purchase,  than  the  Irish  peasant  has  that  he  can  buy 
the  few  acres  of  bog  on  which  he  and  his  ancestors  have 
lived  from  time  immemorial. 

But  these  days  of  prosperity  and  privilege  have  begotten 
other  fortunes  which  have  assumed  gigantic  proportions 
in  first  hands. 


11 

With  the  law  as  it  is,  their  owners  have  the  power  to 
establish  similar  family  compacts,  and  thus  prevent  the 
dispersion  of  their  wealth  at  their  decease.  Exploited  under 
these  conditions,  what  will  the  fortune  of  Mr.  Rockefeller,  or 
Mr.  Morgan,  or  Mr.  Carnegie  become  in  three  generations 
more?  How  much  more  of  the  productive  territory  of  our 
fertile  land  will  pass  into  this  family  mortmain — this  dead 
hand  with  unclenchable  grasp? 

What  will  be  the  condition  of  the  republic  as  time  goes 
on,  with  the  holders  of  these  enormous  fortunes  standing 
athwart  every  avenue  of  profit,  owning  the  choice  places  of 
the  earth,  controlling  the  great  lines  of  transportation,  with 
power  to  punish  with  financial  blight  and  disaster  any  man, 
or  even  any  community,  bold  enough  to  oppose  them,  and 
with  power  to  elevate  and  make  prosperous  every  sycho- 
phant  who  bows  down  and  worships  them? 

The  situation  presents  itself  to  every  thinking  man  as 
one  to  which   some   conservative    remedy  must  be  applied. 

Another  legal  stronghold  of  aristocracy  and  plutocracy  is 
the  doctrine  of  uses  and  trusts. 

According  to  the  recognized  rule  in  England  and  in  most 
of  the  United  States  a  man  may  tie  up  his  estate  in  the 
hands  of  trustees  for  any  number  of  lives  in  being  and 
twenty-one  years  thereafter. 

In  some  of  the  States  this  power  has  been  cut  to  two 
lives.  Under  this  system,  a  man  may  select  any  number 
of  infants,  and  if  any  one  of  them  happens  to  be  long  lived 
and  vigorous,  the  estate  may  be  tied  up  out  of  commerce  in 
the  hands  of  trustees  for  a  century.  Not  only  is  the  prop- 
erty covered  by  the  trust  out  of  commerce,  but  the  estate  is 
not  dispersable  during  this  period.  If  the  beneficiary 
should  become  insolvent,  his  creditors  can  only  take  the 
income  that  would  enure  to  him.  They  cannot  sell  and 
scatter  the  property.  The  grip  of  the  trustee  remains,  pos- 
sibly, for  an  unborn  heir. 


12 

Another  form  which  such  trusts  may  take  is  that  for 
purposes  of  accumulation.  One  may  devise  his  property 
in  trust  to  accumulate  in  the  hands  of  a  trustee,  bv  adding 
income  to  principal  during  lives  in  being,  and  twenty-one 
years  thereafter,  and  direct  the  payment  of  the  whole  accu- 
mulated estate,  at  the  death  of  the  last  among  the  persons 
named,  to  the  then  surviving  children  or  grandchildren. 
The  monstrous  outcome  of  this  doctrine  was  brought  home 
to  the  English  people  by  the  will  of  an  old  miser  named 
Thellusson,  the  validity  of  which  the  courts  maintained, 
whereby  he  was  able  to  tie  up  an  estate  of  five  hundred 
thousand  pounds  for  three  generations,  the  accumulation 
of  which  it  was  calculated  would  amount  to  one  hundred 
millions  of  pounds,  if  any  one  of  his  grandchildren  lived  to 
be  one  hundred  years  old. 

Parliament  promptly  passed  an  act,  which  is  popularly 
known  by  the  name  of  the  miser,  limiting  the  power  of 
accumulation  to  twenty-one  years  after  the  death  of  the 
settler,  or  during  the  minority  of  the  beneficiary. 

But  the  Thellusson  act  is  not  part  of  the  law  of  the 
United  States,  and  the  old  rule  of  accumulation  still  pre- 
vails generally  in  this  country,  modified  as  to  term  in  some 
of  the  States  by  statute. 

Still  another  form  which  such  trusts  may  take  is  what  is 
popularly  styled  a  "spendthrift  trust." 

It  is  the  device  usually  employed  by  the  fond  parent 
to  protect  the  idler,  the  incompetent,  the  weakling,  the 
gambler  and  the  debauchee  from  the  natural  and  legiti- 
mate consequence  of  his  own  acts.  Left  to  such  conse- 
quences, the  career  of  such  a  one  would  be  short,  and  it  is 
to  the  interest  of  society  that  it  should  be  short.  Nothing 
can  be  more  pernicious  to  good  morals  and  to  the  public 
welfare  than  the  constitution  of  such  trusts.  It  is  almost 
like  erecting  all  over  the  body  politic  fortresses  from  which 
the  depraved  may  sally  with   impunity  and    to  which   they 


13 

may  return  at  pleasure  for  recuperation  and  safety.  They 
cultivate  and  coddle  forms  that  ought  to  perish.  They 
promote  extravagance  and  dishonesty.  They  create  the 
same  conditions  out  of  which  grew  up  a  worthless  and 
depraved  class  that  were  the  shame  and  sorrow  of  France 
under  the  old  regime,  and  out  of  which  the  same  class 
must  and  will  grow  up  wherever  they  are  permitted. 
Indeed,  there  are  evidences  among  us  that  such  a  class  is 
forming.  Its  seed  corn  is  found  in  that  host  of  vapid, 
cane-sucking  dudes  who  delight  to  disguise  themselves  in 
speech  and  habit  like  foreign  cads,  and  whose  present 
highest  ambition  is  to  be  arrested  for  running  over  some- 
body with  an  automobile. 

The  approved  form  of  such  a  trust,  and  one  which  I 
regret  to  say  has  passed  muster  in  the  Supreme  Court  of 
the  United  States,  is  this  :  Property  is  given  or  bequeathed 
to  a  trustee  to  pay  the  income  to  a  named  person  during 
his  life,  and  after  his  death  in  trust  for  his  children  who 
attain  majority,  with  the  proviso  that  if  the  beneficiary 
should  alienate  or  dispose  of  the  income  given,  or,  if  by 
bankruptcy,  or  insolvency,  or  any  other  means  whatever, 
the  said  income  can  no  longer  be  personally  enjoyed  by 
him,  but  the  same  would  be  vested  in  or  payable  to  some 
other  person,  then  the  trust  to  pay  the  income  ceases,  and 
thereafter  it  is  to  be  paid  to  his  wife,  or  his  children,  or,  if 
at  that  time  he  has  no  wife  or  child,  the  income  accumu- 
lates during  his  life,  or  until  he  has  a  wife  or  child  ;  with 
the  further  power  in  the  trustee,  after  the  income  has 
been  forfeited,  to  apply  so  much  of  it  as  he  may  choose  to 
the  use  and  benefit  of  the  beneficiary.  The  beneficiary 
may  even  be  one  of  the  trustees  for  his  own  benefit,  and 
after  his  bankruptcy  may,  by  collusion  with  his  co-trustee, 
pay  over  to  himself  as  much  of  the  legally  lost  income  as 
be  chooses.     This  comes  as  near  as  possible  to  proving  that 


14 

there  is  an  exception  to  the  supposed  maxim  that  one  can- 
not eat  his  pie  and  have  it  at  the  same  time. 

Some  of  the  courts  of  this  country  have  issued  their  ipse 
(licit  that  such  trusts  are  not  against  public  policy.  An 
examination  of  those  opinions  will  demonstrate  that  the 
question  is  not  looked  into  analytically  or  historically. 
They  are  based  upon  that  savage  and  unchristian  doctrine 
of  ownership  which  holds  that  one  may  do,  alive  or  dead, 
what  he  pleases  with  his  own,  or  upon  a  sentimentalism, 
which,  in  the  name  of  humanity,  love  and  affection,  im- 
poses the  selfishness  of  the  individual  as  a  burden  upon  the 
body  of  society  ;  and  they  show  a  lamentable  knowledge  of 
both  history  and  political  economy. 

The  interests  of  humanity  and  society  concur,  but  there 
is  a  point  where  the  interest  of  society  begins,  long  before 
the  claims  of  personal  love  and  affection  end.  Therefore, 
the  interests  of  humanity  and  society  can  always  be  recon- 
ciled, while  those  of  society  and  of  individual  love  and 
affection  cannot.  It  is  the  desire  of  love  and  affection,  and 
all  the  other  sentiments,  to  guard  and  preserve  their  object, 
but  that  object  may  be  something  injurious  to  society, 
something  which  its  best  interests  require  to  be  eliminated. 
If  the  means  permitted  to  the  individual  to  guard  and  pro- 
tect the  object  of  his  affections  will  produce  more  harm 
than  good  to  the  many,  then  such  means  must  be  prohibted. 

In  order,  therefore,  to  determine  whether  a  given  thing 
is  against  public  policy,  we  must  look  to  its  general  ten- 
dency, and  not  to  how  it  may  work  in  a  particular  case, 
and  above  all  we  must  read  the  page  of  history  to  find  out 
how  it  has  worked  among  peoples  where  it  was  permitted. 

Spendthrift  trusts  are  condemned  in  England  as  against 
public  policy. 

It  is  a  matter  of  legal  history  that  the  whole  doctrine  of 
trusts  had  its  origin  in  fraud. 

The  fidei  commissa  of  the  Roman  law,  the  parent  of  the 


15 

modern  equitable  doctrine  of  trusts,  were  practiced  for  the 
purpose  of  establishing  an  order  of  succession  different 
from  that  ordained  by  law,  and  to  evade  those  provisions 
declaring  certain  persons  incapable  of  inheriting. 

Whilst  existing  in  fact  during  the  whole  period  of  the 
republic,  they  were  not  recognized,  nor  enforceable,  until 
made  so  by  Augustus  under  the  empire. 

There  is  no  doubt  that  the  object  and  purpose  of  the 
statutes  of  Richard  III  and  Henry  VIII  were  to  abolish 
and  prohibit  every  form  of  trusts  which  were  then  called 
uses,  and  which  had  become  a  great  abuse  in  the  kingdom  ; 
but  by  the  cunning  and  pious  fraud  of  the  chancellors,  who 
were  then  ecclesiastics,  thev  simplv  changed  the  name  of 
the  thing  from  a  use  to  a  trust,  and  they  and  their  lawyer- 
successors  wrent  on  gradually  building  up  that  great  mass 
of  judge-made  law  now  administered  in  courts  of  equity, 
and  which,  as  I  have  already  mentioned,  grew  up  under 
the  pressure  of  a  greedy  and  domineering  aristocracy. 

In  process  of  time  the  judges  were  confronted  with  the 
question  of  perpetuities,  i.  c,  the  tying  up  of  property  in 
such  a  wav  that  it  would  not  vest  for  several  generations. 
They  entertained  no  doubt  that  a  perpetuity  was  against 
public  policy.  As  the  matter  was  put  much  later:  "A 
perpetuity  is  a  thing  odious  in  the  law  and  destructive  to 
the  commonwealth.  It  would  stop  commerce  and  prevent 
the  circulation  of  property." 

At  first  the  judges  limited  the  power  to  tie  up  an  estate 
to  one  life.  But  apparently  the  pressure  against  them  was 
too  strong.  The  common  law  judges  having  invented  the 
plan  of  barring  entails,  the  pride  of  famil}"  required  some 
other  means  of  perpetuating  the  family  estate.  As  stated, 
a  moment  ago,  the  feudal  power  gradually  destroyed  the 
restrictions  of  the  common  law  on  the  right  to  dispose  by 
will,  and  established  the  unlimited  power  to  dispose  of  one's 


16 

estate.     Hence,  as  Lord  Bacon  says,  a  refuge  was  sought  in 
perpetuities. 

To  maintain  itself,  the  aristocracy  needed  the  power  to 
tie  up  its  property  for  more  than  one  life,  and  it  got  that 
power;  because  the  doctrine  was  gradually  extended  until 
at  last  it  was  settled  that  the  power  to  tie  up  might  extend 
over  any  number  of  lives  in  being  and  twenty-one  years, 
and  nine  months  if  necessary,  thereafter. 

In  this  shape  American  lawyers  and  judges  imported 
this  doctrine  into  this  country,  because  they  found  it  in  the 
only  books  they  read  and  studied,  and  they  knew  no  other. 
They  apparently  never  stopped  to  think  whether  it  was 
consistent  with  the  principles  of  our  government,  and  were 
caught  in  its  toils  before  they  realized  the  end  to  which, 
under  changing  conditions,  it  might  lead. 

Strange  to  say  the  bulk  of  this  importation  was  made 
after  the  revolution  had  separated  us  from  the  mother 
countrv.  Prior  to  the  revolution  there  were  rudimentary 
beginnings  of  equitable  jurisdiction  and  doctrines  in  some 
of  the  colonies,  and  in  others  none.  Now,  the  full  flower 
blows  all  over  the  land. 

This  introduction,  in  my  judgment,  was  due  to  three 
causes :  first,  to  that  ingrained  spirit  of  routine  which 
makes  it  easy  to  follow  a  beaten  track,  especially  when 
one  is  educated  in  that  track  ;  second,  to  the  undoubted 
existence  in  this  countrv  during  the  first  fortv  vears  after 
the  revolution  of  an  influential  aristocratic  party  which, 
under  the  leadership  of  Hamilton  and  his  confreres,  sought 
to  increase  and  concentrate  the  powers  of  government  and 
to  destroy,  as  far  as  possible,  the  rights  of  the  people  ;  and, 
third,  to  the  reaction  caused  during  the  same  period  by 
the  atrocities  of  the  French  Terror,  committed  in  the  name 
of  liberty,  a  reaction  which  chartered  every  defender  of 
an  ancient  abuse  to  paralyze  the  reforming  influence  of 
the  liberal  minded  man  by  denouncing  him  as  a  Jacobin} 


17 

which  produced  in  England  laws,  the  enforcement  of  which, 
as  Lord  Campbell  says,  would  have  made  Englishmen  slaves 
or  revolutionists  in  order  to  escape  servitude,  which  gave 
rise  to  that  gloomy  period  in  our  politics  so  pathetically 
described  by  Mr.  Jefferson  in  his  memorial  to  the  legisla- 
ture of  this  State,  and  which  finally  culminated  in  the 
Holy  Alliance — that  conspiracy  between  the  crowned  heads 
of  Europe  to  crush  republican  government  wTherever  it 
should  raise  its  head. 

Conclusive  proof  of  the  pernicious  influence  upon  the 
life  of  a  nation  of  trust  estates,  operating  through  a  long 
period,  and  of  the  theme  which  I  uphold,  that  they  are  the 
main  prop  of  aristocracy  and  its  congener,  plutocracy,  is 
found  in  the  history  of  France,  and  in  the  opinions  of  her 
great  statesmen  and  law  writers. 

These  same  trust  estates,  from  their  origin  in  the  Roman 
law,  are  known  under  the  French  law  as  substitutions,  or 
to  speak  more  strictly,  fidei-commissary  substitutions.  They 
are  sometimes  called  simply  fidei  eommissa,  which  is  noth- 
ing but  the  Latin  for  the  English  term   "Trust  Estate." 

Their  injury  to  the  commonwealth  was  recognized  at  an 
early  period.  The  property  of  the  realm  passed  out  of  com- 
merce and  was  concentrated  in  great  estates,  the  possessors 
of  which  were  not  the  owners.  An  idle  class  of  spend- 
thrift debauchees  arose,  who  would  not  pay  their  debts, 
and  whose  creditors  could  not  levy.  The  natural  order  of 
succession  and  distribution  was  turned  aside.  The  courts 
were  filled  with  scandalous  litigations  to  protect  the  inter- 
ests of  the  remote  beneficiaries  from  waste  ;  and  there  was 
built  up,  to  confound  the  student  and  the  judge,  an  enor- 
mous and  intricate  mass  of  law,  defining  the  rights  and 
duties  of  the  parties,  which  was  absolutely  beyond  the  com- 
prehension of  laymen,  and  which  was  interpenetrated  with 
all  the  subtleties  and  bristling  witth  all  the  quibbles  of 
scholasticism. 


18 

As  early  as  1560,  by  the  ordinance  of  Orleans,  substitu- 
tions were  limited  to  two  degrees,  or,  in  other  words,  to 
two  generations.  This  is  practically  the  same  as  the  Eng- 
lish rule  against  perpetuities.  Justinian  had  limited  them 
to  four  generations.  But  this  ordinance  did  not  even  miti- 
gate  the  evil.  The  feudal  sentiment,  aided  by  the  inge- 
nuity of  lawyers  and  the  complaisance  of  the  courts,  found 
means  to  evade  the  prohibition,  so  that  substitution  was 
piled  on  substitution,  and  no  sooner  was  property  out  of  one 
net  than  it  immediately  passed  into  another. 

The  same  rule  was  re-enacted  by  the  ordinance  of  1747, 
but  with  the  same  results;  and  the  nation  moved  on, 
oroaninff  under  its  burden,  to  meet  the  catastrophe  of  the 
revolution,  when  the  whole  miserable  system  was  wiped  out 
by  the  law  of  November  14,  1792.  This  law  was  no  fren- 
zied outburst  of  the  sans  culottes.  It  simply  gave  effect  to 
the  unanimous  opinion  expressed  through  more  than  two 
hundred  years,  of  all  the  great  jurists  of  France,  that  sub- 
stitutions were  odious,  embarrassing,  the  matrix  of  fraud, 
and  no7i  satis  republics  expcdientcs. 

Although  there  is  some  apparent  conflict  in  his  deliver- 
ances, Montesquieu  said  in  his  Persian  Letters  that  substi- 
tutions were  useful  only  in  an  aristocracy,  but  that  they 
should  not  be  permitted  either  in  a  monarchy  or  in  a 
democracy,  except  in  a  very  limited  degree,  and  under  the 
most  stringent  regulations. 

Chancellor  D'Aguesseau  said  that  the  best  of  all  laws 
would  be  that  entirely  abrogating  all  fidei  commissa. 

Cardinal  Mantica  gives  the  names  of  a  host  of  learned 
doctors  who  had  declared  against  substitutions  and  fidei 
commissa,  and  sums  up  twelve  cogent  reasons  against  their 
existence. 

In  the  discussions  which  took  place  over  the  Civil  Code 
of  1804,  all  the  jurisconsults  expressed  their  utter  disap- 
probation  of  substitutions,  and  Napoleon  himself,  who,  as 


19 

First  Consul,  took  part  in  those  discussions,  declared  that 
their  only  purpose  was  to  maintain  the  so-called  great  fam- 
ilies, and  to  perpetuate  in  their  eldest  sons  the  splendor  of 
a  great  name,  and  that  they  were  contrary  to  good  morals 
and  to  reason.  When  he  forgot  his  republican  principles 
and  set  up  the  empire,  he  re-established  substitutions  in 
support  of  the  majorats  or  landed  estates  descending 
with  an  honorary  title  created  by  him.  The  Restoration 
of  the  Bourbons,  which  followed  the  empire,  abolished 
majorats  and  re-established  substitutions,  but  the  repub- 
lican government  of  1849  again  swept  them  away. 

Marcade,  oue  of  the  great  modern  commentators,  says  : 
"There  is  little  legislation  which  has  undergone  so  many 
changes  as  that  relative  to  fidei-commissary  substitutions, 
and  the  cause  of  it  is  that  there  is  no  other  subject  than 
this  more  closely  allied  to  governmental  forms  and  holding 
more  intrinsic  relation  to  political  systems." 

Demolorabe,  another  of  such  commentators,  says  : 
"Among  all  the  subjects  of  private  law,  substitutions  are 
most  closely  attached  to  public  law,  and  therefore  they 
must  inevitably  receive  the  shock  of  the  revolutions  which 
take  place  in  the  form  of  government  and  the  political  sys- 
tem of  the  country.  Hence  the  history  of  substitutions  in 
the  last  half  century  is  nothing  more  than  the  history  itself 
of  our  changes  of  constitution." 

The  same  close  connection  between  the  form  of  govern- 
ment and  substitutions  is  exhibited  in  Belgium  and  Spain. 

In  Belgium  they  fell  with  the  empire  and  have  not  been 
re-established. 

In  Spain  the  mayorazgos,  established  by  the  laws  of 
Toro,  and  all  forms  of  fidei  commissa  were  abolished  when 
the  liberals  came  into  power  in  1S20  and  forced  Ferdinand 
the  VII  to  restore  the  Constitution  of  Cadiz.  They  were 
re-established  in  1823,  when  the  constitutional  S}Tstem  was 
overthrown  by  the  Holy  Alliance,  who  sent  the  Duke  of 


20 

Angouleme  into  Spain  with  a  hundred,  thousand  men  at 
his  back  to  suppress  the  aspirations  of  a  brave  people  for 
liberty  and  to  re-inaugurate  the  absolute  power  of  the 
most  despicable  and  degraded  wretch  that  ever  disgraced 
humanity. 

When  the  liberals  again  attained  power  in  1836,  they 
forced  the  Queen  Regent  to  restore  by  decree  the  law  of 
1820;  and  under  the  constitution  of  1837,  the  Cortes  in 
1841  reinforced  the  Act  of  1820. 

The  historian  Mariana  savs  that  this  law  released  more 
than  half  of  the  capital  and  property  of  Spain  from  the 
clutches  of  a  system  which  a  learned  Spanish  judge  de- 
nounces as  "repugnant  to  the  principles  of  wise  and  just  leg- 
islation," and  as  "the  abortion  of  the  monster  of  feudalism." 

Jovellanos,  DeCastro,  Sempere,  and  in  fact  all  of  the 
Spanish  jurists,  are  as  unanimous  as  the  French  juriscon- 
sults in  their  hostility  to  fidei-commissary  substitutions. 

Struck  by  the  apparently  necessary  connection  between 
the  downfall  of  substitutions  and  the  rise  of  the  power  of 
the  people,  the  learned  professor  of  law  in  the  University 
of  Ghent  says  :  "The  future  belongs  to  the  democracy  ; 
and  whether  we  rejoice  at  it  or  deplore  it,  it  is  a  fact,  and 
a  providential  fact  against  which  all  the  efforts  of  the  men 
who  belong  to  the  past  have  broken  in  shipwreck.  Re- 
actionary laws  have  all  been  repealed,  and  the  democratic 
wave  rolls  on  increasing.  We  must  make  room  for  it  in 
society,  or  it  will  brim  over  and  destroy  everything." 

It  is  the  general  opinion  of  the  political  economists  who 
have  touched  this  question — and  I  must  say  there  is  a 
great  dearth  of  discussion  on  the  subject  among  them — 
that  laws  relative  to  inheritances  are  the  most  powerful 
means  of  acting  on  the  distribution  of  the  wealth  of  a 
country. 

Mr.  Jefferson  thought  that  the  best  of  all  agrarian  laws 
is  the  law  of  equal  distribution. 


21 

DeTocqueville  said  that  he  was  "surprised  that  ancient 
and  modern  jurists  have  not  attributed  to  the  law  of  in- 
heritance a  greater  influence  on  human  affairs.  It  is  true 
these  laws  belong  to  civil  affairs  ;  but  they  ought  neverthe- 
less to  be  placed  at  the  head  of  all  political  institutions  ; 
for  they  exercise  an  incredible  influence  upon  the  social 
state  of  a  people,  whilst  political  laws  only  show  what  the 
State  already  is.  They  have  moreover  a  sure  and  uniform 
manner  of  operating  upon  society,  affecting  as  it  were  gen- 
erations yet  unborn.  Through  their  means  max  ac- 
quires A  KIND  OF  PRETERNATURAL  POWER  OVER  THE  FUTURE 
OF  HIS  FELLOW  CREATURES.  WHEN  THE  LEGISLATOR  HAS 
ONCE  REGULATED  THE  LAW  OF  INHERITANCE,  HE  MAY  REST 
FROM  HIS  LABOR.  THE  MACHINE  ONCE  PUT  IN  MOTION  WILL 
GO  ON  FOR  AGES  AND  ADVANCE  AS  IF  SELF-GUIDED  TOWARDS 
A  POINT  INDICATED  BEFOREHAND.  WHEN  FRAMED  IN  A  PAR- 
TICULAR MANNER  THIS  LAW  UNITES,  DRAWS  TOGETHER  AND 
VESTS  PROPERTY  AND  POWER  IN  A  FEW  HANDS  J  IT  CAUSES 
AN  ARISTOCRACY  TO  SPRING,  SO  TO  SPEAK,  OUT  OF  THE 
GROUND.  IF  FORMED  ON  OPPOSITE  PRINCIPLES,  ITS  ACTION 
IS  STILL  MORE  RAPID  ;  IT  DIVIDES,  DISTRIBUTES  AND  DIS- 
PERSES BOTH  PROPERTY  AND  POWER." 

In  my  humble  judgment  no  profounder  truth  was  ever 
formulated  than  the  one  contained  in  the  quotation  I  have 
just  read. 

Exactly  the  same  idea  is  set  forth  in  the  great  oration 
pronounced  by  Mr.  Webster  on  December  22,  1820,  the  two 
hundredth  anniversary  of  the  landing  of  the  Pilgrims.  He 
declared  that  "a  republican  form  of  government  rests  not 
more  on  political  constitution  than  on  those  laws  which 
regulate  the  descent  and  transmission  of  property,"  and 
that  "governments  like  ours  could  not  have  been  main- 
tained where  property  was  holden  according  to  the  prin- 
ciples of  the  feudal  system." 


22 

Speaking  further  of  the  conditions  under  which  the 
pilgrim  fathers  reached  these  shores,  he  said  : 

"Their  situation  demanded  a  parcelling  out  and  division 
of  the  lands,  and  it  may  be  fairly  said  that  this  necessary 
act  fixed  the  future  frame  and  form  of  their  government.  The 
character  of  their  institutions  was  determined  by  the  fund- 
amental laws  respecting  property.  The  laws  rendered 
estates  divisible  among  sons  and  daughters.  The  right  of 
primogeniture,  at  first  limited  and  curtailed,  was  after- 
wards abolished.  The  entailment  of  estates,  long  trusts,  and 
other  processes  for  fettering  and  tying  up  inheritances,  were  not 
applicable  to  the  condition  of  society  and  were  not  made  use  of.,, 

He  then  proceeded  to  venture  a  prediction,  based  on  the 
principle  he  had  announced,  that  the  laws  of  property  and 
inheritance  regulate  the  form  of  government.  The  French 
monarchv  had  but  latelv  been  replaced  on  the  ruins  of  the 
empire,  but  it  had  not  touched  the  law  of  forced  heirship, 
nor  the  rule  of  equal  distribution  of  property  established 
by  the  Napoleon  Code,  which  wras  the  outcome  of  the  revo- 
lution. He  said  :  "If  the  government  do  not  change  the 
law,  the  law  in  half  a  century  will  change  the  government, 
and  this  change  will  not  be  in  favor  of  the  power  of  the 
crown  but  against  it." 

His  prediction  was  verified  in  twenty-eight  years.  The 
coup  d'etat  of  Napoleon  III  reversed  the  current  for  two 
decades,  but  France  to-day  is  solidly  fixed  upon  a  repub- 
lican foundation,  and  her  lawyers,  her  statesmen,  her  polit- 
ical economists  and  her  historians  unanimousl}T  ascribe  the 
breadth  and  firmness  of  that  foundation  to  her  inherit- 
ance laws  and  to  her  prohibition  against  fidei-commissary 
substitutions. 

Standing  upon  the  shoulders  of  these  eminent  statesmen 
and  observers,  even  a  pigmy  can  see  into  the  future,  and 
the    humblest    thinker   can   safely  venture   the   prediction 

that   UNLESS    THE     AMERICAN    STATE    GOVERNMENTS    CHANGE 


23 

THEIR  PROPERTY  LAWS,  THOSE  LAWS  WILL,  IN  PROGRESS  OF 
TIME,  CHANGE  NOT  ONLY  THOSE  GOVERNMENTS,  BUT  THAT  OF 
THE  FEDERAL  AGENT  AS  WELL. 

Under  such  influences,  this  change  of  government  will 
either  come  by  revolution  or  by  imperialism  ;  by  revolu- 
tion where  the  great  masses,  deprived  of  hope,  seeing 
nothing-  for  them  and  their  children  forever  but  the. life  of 
mere  expletives  to  receive  slim  salaries,  or  a  scanty  wage, 
and  seeing  the  whole  horizon  of  the  future  filled  by  gigantic 
forms,  thrust  forward  by  an  apparently  irresistible  power, 
coming  out  of  the  past  and  intrenched  in  the  law,  rise  in 
the  desperation  of  a  blind  Samson  and  pull  down  the 
whole  temple  of  society  ;  by  imperialism,  where,  like  in 
Rome,  the  forms  of  the  republic  will  be  scrupulously  kept, 
down  to  the  naming  of  the  smallest  constable,  but  the 
powers  of  government  will  be  deposited  beyond  the  control 
or  reach  of  the  people. 

It  is  useless  for  us  to  brag  and  boast,  and  say  that  we  are 
exempt  from  the  laws  that  govern  the  growth  and  develop- 
ment of  societv,  and  that  the  same  social  forces  that  have 
operated  under  similar  conditions  among  other  peoples 
cannot  produce  the  same  results  among  us.  It  is  the  part 
of  wisdom  to  change  the  conditions,  and  to  seek  remedies 
that  will  check  evil  tendencies. 

We  have  those  remedies  at  hand.  They  are  not  new, 
nor  of  small  authority,  nor  untried.  On  the  contrary,  they 
are  honorable  with  years,  they  bear  the  imprimature  of 
"the  great  of  old,  the  dead  but  sceptered  sovrans  who  still 
rule  our  spirits  from  their  urns,"  and  they  are  and  have 
been  practiced  in  the  civilized  nations  of  the  earth. 

These  remedies  are  the  establishment  of  forced  heirship 
and  the  absolute  prohibition  of  every  form  of  trust  estates. 

Under  the  custom  of  our  Saxon  forefathers,  traces  of 
which  were  found  even  down  to  the  time  of  Charles  I,  no 
father  of  a  family  had  absolute   power  over  the  disposition 


24 

of  his  estate.  One-third  went  to  his  wife,  one-third  to  his 
children,  and  one-third  was  at  his  disposal. 

The  corrupt  period  of  the  Restoration,  when  all  laws, 
human  and  divine,  were  relaxed,  appears  to  be  that  in 
which  the  unqualified  power  to  dispose  of  both  real  and 
personal  estate  was  finally  established.  This  change,  as 
shown  just  now,  was  the  work  of  feudalism.  It  rolled  back 
the  law  of  England  to  the  law  of  the  XII  Tables.  It  was 
an  example  of  legal  atavism  whereby  an  ancient  and 
lower  type  reappeared  clothed  with  all  of  its  pristine 
hardness  and  cruelty,  and  purged  of  every  softening  influ- 
ence which  sixteen  hundred  years  of  civilization  and  of 
Christianity  had  injected  into  its  composition. 

Even  before  the  benign  influence  of  the  Christian  reli- 
gion began  to  work  upon  the  civil  law  of  Rome,  a  pagan 
society  had  found  a  means  to  modify  and  control  the  man- 
date of  the  ancient  law — uti  legassit,  sic  lex  esto — by  giving 
excluded  heirs  an  action  before  the  Prsetor,  called  Querela 
Inofficiosi  Testamenti;  or,  as  it  has  been  well  translated, 
"The  Plaint  of  an  Unduteous  Will,"  which  was  based  on 
the  presumption  that  one  who  had  violated  in  his  testa- 
ment the  ties  of  family,  the  duty  of  a  parent,  or  the  dic- 
tates of  natural  affection,  was  essentially  non  compos  mentis, 
and  devoid  of  testamentary  capacity. 

An  analogous  action  exists  to-day  in  the  common  law 
countries,  whereby  wills  are  attacked  for  undue  influence  ; 
and  juries  and  surrogates,  in  order  to  remedy  a  rank  injus- 
tice, catch  at  the  smallest  straws,  and  often  violate  every 
rule  of  evidence,  of  logic,  and  of  common  sense,  to  over- 
throw a  will.  These  melancholy  actions  which  rake  the 
dust  off  of  buried  scandals,  which  draw  from  their  closets 
the  hideous  family  skeleton,  which  sever  the  ties  of  kin- 
dred, which  cast  fire-brands  into  peaceful  and  united 
households,  are  not  permitted  where  forced  heirship  pre- 
vails.    As  soon  as  forced  heirshin  was  established  in  Rome 


25 

the  Querela  was  reduced  to  a  mere  action  for  the  recovery, 
or  the  supplement  of  the  legitimate  portion.  Under  the 
Code  Napoleon,  no  proof  is  admitted  that  a  testamentary 
disposition  was  made  through  anger,  hatred,  suggestion  or 
captation. 

Forced  heirship,  or  the  reservation  in  the  ascending  and 
descending  line  of  a  certain  portion  of  an  estate,  is  the  law 
to-day  of  everv  civilized  country  of  the  world,  except  Eng- 
land,  and  her  present  and  former  colonies,  and  in  some  form 
it  has  been  the  law  of  the  European  countries  since  they 
were  Roman  colonies.  Nowhere  are  the  ties  of  family 
more  closely  knit  than  in  those  countries.  Children  are 
as  obedient  and  as  dutiful  as  in  England,  or  in  the  United 
States.  Disinherison  is  not  permitted  except  upon  grounds 
that  rest  in  the  law  of  nature,  and  society  is  saved  from 
such  tragedies  as  that  which  lately  sent  a  thrill  of  horror 
through  this  land,  when  a  wrongfully  disinherited  son  be- 
came both  a  fratracide  and  a  suicide. 

Under  the  operation  of  such  a  law  the  family  compact 
necessarily  and  inevitably  disappears,  because  it  is  expect- 
ing too  much  of  human  nature  to  suppose  that  those  who 
are  entitled  by  law  to  a  share  in  a  large  estate  would  vol- 
untarily surrender  it. 

I  do  not  hesitate  to  affirm  that  if  this  law  had  prevailed 
in  New  York,  both  the  Astor  and  the  Vanderbilt  fortunes 
would  by  this  time  have  been  dispersed. 

It  has  had  an  equalizing  and  dispersing  effect  wherever 
applied,  and  it  must  have  the  same  effect  when  applied 
here. 

We  can  never  say  that  we  have  abolished  primogeniture 
as  long  as  one  may  by  will  leave  all  his  property  to  his 
eldest  son,  and  agree  with  him  that  he  in  turn  shall  leave 
all  his  property  to  his  eldest  son  ;  and  it  cannot  be  gainsaid 
that  primogeniture,  or  anything  that  is  its  equivalent,  is 
hostile  to  the  fundamental  principles  on  which  our  govern- 


26 

ment  rest.  With  this  cancer  in  our  vitals,  we  can  never 
realize  the  maxim  propounded  by  Daniel  Webster,  that 
''subdivision  of  soil  and  equality  of  condition  are  the  true 
basis  of  a  popular  government." 

Operated  by  themselves  under  the  rules  of  forced  heir- 
ship, which  include  the  principle  that  the  legitimate  por- 
tion must  go  to  the  forced  heir  absolutely  unfettered  with 
conditions  and  limitations,  trust  estates,  or  executory  de- 
vises, or  substitutions,  or  fidci  commissa,  or  whatever  the 
thing  they  all  essentially  represent,  may  be  called,  are 
curtailed  of  part  of  their  power  of  injuring  the  common- 
wealth. 

But  when  they  are  permitted  to  be  operated  in  conjunc- 
tion with  the  unlimited  power  of  disposition,  then  we  are 
confronted  with  all  the  evils  not  only  of  primogeniture,  but 
of  entails.  For  in  such  case  there  is  nothing  to  hinder  the 
concentration  of  a  whole  estate  in  one  heir,  and  the  piling 
of  a  trust  on  top  of  a  trust,  just  as  the  French  lawyers  piled 
substitution  on  top  of  substitution,  thus  keeping  the  prop- 
erty perpetually  out  of  commerce :  because  there  is  no 
reason  why  a  remote  beneficiary  should  not  transfer  the 
property,  as  soon  as  it  vests  in  him  in  trust  for  another 
remote  beneficiary,  and  so  on  ad  infinitum. 

Large  estates,  however,  may  be  owned  by  persons  who 
have  neither  ascendants  nor  descendants  nor  any  relatives 
who  could  properly  be  placed  in  the  catagory  of  forced 
heirs.  How  regulate  their  estates?  The  answer  is  that 
childless  men  are  the  exception  to  the  rule.  But,  by  the 
absolute  prohibition  of  all  trusts  except  purely  naked  trusts, 
>uch  as  executorships,  guardianships  of  minors,  and  of  per- 
son- non  compos,  assigneeships  in  bankruptcy  and  insolv- 
ency and  the  like,  we  not  only  reach  this  exceptional  class, 
but  all  others  who  may  desire  to  tie  up  property  and  keep 
it  out  of  commerce,  whether  to  build  up  their  own  families, 
or  to  accumulate  an  enormous  estate  for  some  remote  heir, 


or  to  ensure  an  unfailing  supply  of  funds  to  minister  to  the 
wants  and  vices  of  some  decadent.  To  say  that  there  may 
be  cases  where  a  trust  is  necessary  to  provide  for  the 
welfare  of  a  helpless  person,  is  no  answer  to  the  proposi- 
tion, because  the  case  put  is  exceptional,  and  because  while 
society,  from  motives  of  humanity  looks  after  the  infant, 
the  feeble-minded  and  the  feeble-bodied,  for  whose  benefit 
naked  trusts  are  admissible,  it  is  clearly  against  its  interest 
to  constitute  itself  a  hothouse  for  the  cultivation  and  re- 
production of  fragile  forms  that  cannot  stand  contact  with 
the  affairs  of  everyday  life.  Besides,  experience  with  the 
operation  of  this  prohibition  in  countries  where  it  applies, 
has  worked  nothing  but  good,  and  has  tended  to  develop 
self-reliance  and  capacity  for  affairs  among  the  people. 

The  extent  to  which  the  property  of  this  republic  is 
being  tied  up  in  trust  estates  is  appalling.  I  believe  that 
authentic  statistics  on  the  subject  would  shock  the  nation 
from  centre  to  circumference  ;  and  it  is  to  be  hoped  that 
in  the  next  census  some  investigation  mav  be  made  of  this 
grave  question. 

The  conditions  have  fundamentals  changed  in  the  last 
eighty  years. 

Although  the  pilgrim  fathers  may  not  have  used  "long 
trusts  and  other  processes  for  fettering  and  tying  up  in- 
heritances," because  inapplicable  to  their  conditions,  their 
descendants,  as  well  as  those  of  the  cavaliers,  and  particu- 
larly the  holders  of  large  fortunes,  are  daily  forging  legal 
chains  to  shackle  their  estates  to  the  uttermost  limit  their 
advisers  think  will  run  the  gauntlet  of  the  courts. 

They  are  no  longer  troubled  with  the  old  question  of  the 
shortness  of  life,  or  the  insolvency  or  the  incompetency  of 
their  trustees.  Corporations  of  indefinite  existence,  with 
great  capital  stocks,  and  keen  business  men  at  the  fore,  now 
perform    the  duties   and    functions   of   trustees.     In    every 


28 

metropolitan  city,  these  trust  corporations  have  sprung  up 
with  startling  rapidity. 

In  the  City  of  New  York  alone  there  are  thirty-seven 
of  such  companies,  with  an  aggregate  capital  stock  of 
$98,000,000.  Assuming  them  to  have,  on  the  average,  the 
prosperity  of  one  small  company  in  a  Southern  city,  which 
I  know  holds  $35,000,000  of  property  in  trust  estates,  there 
being  two  other  trust  companies  in  the  same  city,  and  we 
reach  the  startling  figure  of  over  one  thousand  millions  of 
such  property  as  the  probable  holdings  in  trust  of  these 
New  York  companies  alone,  without  reference  to  the  hold- 
ings of  similar  strong  companies  in  the  other  great  centres 
of  population. 

No  doubt  there  is  a  large  field  in  business  and  in  society 
in  which  these  companies  can  and  do  operate  with  no  other 
result  but  good  to  individuals  and  to  the  community.  For 
these  purposes  they  ought  to  be  permitted  and  even  en- 
couraged. But  when  they  are  yoked  up  in  harness  with 
our  existing  property  laws,  and  are  made  the  depositaries 
in  trust  of  the  fortunes  of  all  the  rich  men  in  the  common- 
wealth, then  government  by  the  people  will  cease,  and  gov- 
ernment by  trust  companies  will  begin. 

For  these  reasons,  I  have  long  maintained  the  opinion, 
and  deem  it  my  duty,  as  an  alumnus  of  the  institution 
founded  by  the  father  of  American  liberty,  to  express  here 
to-day  the  opinion,  that  the  only  effectual  way  to  arrest  the 
progress  of  plutocracy  in  this  republic,  is  to  set  our  laws  of 
property  and  the  right  to  inherit  and  to  dispose  of  property 
b}7  will  back  again  upon  lines  as  near  as  possible  to  those 
simple  and  uncomplicated  rules  that  prevailed  among  our 
Saxon  ancestors,  to  purify  the  law  of  the  land  with  demo- 
cratic fire,  and  to  pluck  up  by  the  roots  the  last  remnant  of 
feudalism  with  which  our  society  is  tainted. 


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